Reversing Council Derision

States do not need to accept a Council agreement that does not represent their will

Background

Talks with politologists and Brussels lobbyists independently confirmed that the heads of state can reverse decisions of their ministers, especially in cases such as that of 2004-05-18, where it appears that the decision taken by the ministers does not reflect the will of a real qualified majority of governments.

There is no law that forbids reversal of such flawed decisionmaking. Nevertheless governments hesitate to do it, because it could undermine the trust in words given at international negotiations. OTOH, political malpractise of the level witnessed here is rare.

Summary of text by Dr. iur. Karl-Friedrich Lenz, professor of European Law

This can be summarized:

The Irish proposal will be called on the next meeting as an A-item. Each delegation can oppose that, and then a majority is needed to keep the point on the agenda (Art 3 Par 8). Moreover, each delegation still has the right to express an opinion at the time of the approval of these items and have statements included in the minutes (Art 3 Par 6).

If a Member State thinks that its vote was recorded wrongly in the last session, then this Member State can unilaterally force a vote on whether the item should remain on the agenda. And it can, if the item does remain on the agenda, give more declarations to the minutes that rule out any misunderstanding.

Furthermore, according to Article 13 Par 3 each Member State can demand that certain details are included into the minutes as long as the the minutes are not yet authorized. This always gives a delegation the option to correct a recording of its voting behavior considered improper.

We can't imagine that minutes are authorized against the voiced opposition of a Member State, if they contain records of a vote of that Member State the Member State doesn't agree with.

The crucial question is whether there really is a majority in the Council for the Irish proposal or whether that majority was only fabricated by creative voting arrangements by the Presidency. This is a political question. If there is a blocking minority against the proposal the rules of procedure give enough ways to express it.

Some more info from legal experts

There will not be a definitive Council decision until the formal common position is adopted. The decision adopted on May the 18th is only an internal Council agreement, so-called 'political agreement on common position'. It is not legally binding, due to the fact that its not a Council common position.

Member states may decide to take the following actions no matter what their vote and position was on the may the 18th meeting:

a) Ask the Presidency to withdraw the voting from the agenda in the circumstances provided in the Council Rules of Procedure;

b) Require the Presidency to open a new voting procedure;

Until the formal adoption of the Council common position takes place, national delegations have the right to modify their opinions on the matters concerned, even if these have been the object of a political agreement by the Council. However, practice shows that informal agreements are in fact confirmed afterwards. One may suggest that there are political implications in departing from a previously agreed matter.

Even if it were a formal common position, the meeting record (minutes) has to be approved by the Council 15 days after the meeting. If a Member States considers that the Presidency has misunderstood his position or vote, it has the opportunity to vote against approval of the record.

Conditions to retract an A-item:

1. Now, as indicated above, the legal rule is that "A" items can be withdrawn from the agenda in the circumstances provided in the Council Rules of Procedure: an "A" item can be withdrawn "unless the Council decides otherwise" if a position might lead to further discussion or if a Member of the Council or the Commission so requests. Accordingly, if only one delegation requests withdrawing, preventing that needs a majority of the Council "to decide otherwise". As mentioned above, "A" items are to be adopted without discussion.

So "the Council" must agree with keeping the A-item on the agenda. This means a majority for the Irish proposal is necessary to keep it on the agenda as an A-item.

The condition for a new vote:

2. The Council shall vote on the initiative of its President. However, the President shall be required to open a voting procedure on the initiative of a member of the Council or of the Commission, "provided that a majority of the Council's members so decide" (Article 11.1 Council Rules of Procedure.). Accordingly, it seems possible that a voting procedure is not opened. In any case, in order for the Council to adopt a decision, the majority required by the rules governing the act must be respected. The necessary majority must exist, otherwise the act would be entached of a breach of procedural requirement. Council's common positions are adopted by qualified majority, as a general rule. The delegations keep the right of having statements recorded in minutes.